JAI BHAGWAN Vs. STATE

JUDGEMENT

(1.) This is an appeal by Jai Bhagwan, Jai Gopal and JaiParkash against their conviction under section 325 read with section 34 IPC and section 452/34 Indian Penal Code and the order directing their release on probation ontheir furnishing bonds in the sum of Rs. 5.000.00 each with one surety each inthe like amount for a period of two years to keep peace and to be of goodbehaviour. The three appellants were also directed to pay Rs. 500.00 each ascosts of the prosecution by the impugned judgment and order of Mr. R.C. Jain,Additional Sessions Judge both dated 20/06/1983. The prosecution casestated in brief is that injured Dayal Dass and his brother Om Prakash Public Witness 6used to reside in house No. 367 village Tihar. All the six accused includingthe three appellants used to reside in house No, 197 village Tihar, the thirdor fourth house from the house of Dayal Dass. The five accused, other thanUdho Dass accused, are real brothers. The relations between accused personsand the family of Dayal Dass, injured, were strained. A quarrel had takenplace between the two parties prior to the date of occurrence or 7/11/1980. Both these parties were also earlier proceeded against under section191 Criminal Procedure Code On 7/11/1980 at about 8 p.m. which was the day ofDiwali festival, Om Prakash and Krishan Luthra, PWs were lighting candleson the roof of their house. Jai Bhagwan, Jai Parkash and Jai Gopal, thethree appellants, came to the roof of the house adjoining to the house of thecomplainant. The appellants shouted at 0m Prakash and Krishan Luthra andtold them that they would see as to how they would celebrate Diwali on thatday. On this 0m Prakash came down from the roof. Krishan Luthra wentand lodged a report with the police about this incident. Then at 9 p.m. ofthe same day day, the three appellants came to the house of the complainanton a motor cycle armed with lathis. They parked the motor cycle in front ofthe house of Dayal Dass. They all went inside his house. Udho Dass coaccused was present outside the house and gave an .exhortation to his fiveco-accused saying that they should finish Dayal Dass. On that Dayal Dasswas given beating with lathis by the three appellants, 0m Prakash saw thisoccurrence. He went inside a room of the house where women folk werepresent and could not come to the rescue of Dayal Dass. The other twoaccused viz. Jai Kishan and Jai Kumar came at the roof of the house of DayalDass. They pelted stones and brickbats from there inside the court-yard ofDayal Dass. None was, however, injured by those stones etc. 0m Prakashwent to the police station Tilak Nagar and lodged the FIR. Dayal Dass wastaken to the Willingdon Hospital by Lok Nath PW. As per the medicalevidence Dayal Dass sustained a fracture of the shaft of 3rd, 4th and 5th leftmetacorpal bones, besides getting bruises on his bo and a CLM of 2" x1"on chin and a haematoma.

(2.) The prosecution relied on the statement of the injured Dayal Dassand the only other eye witness 0m Prakash PW 6 who supported the versionof the prosecution at the trial of the case. The accused appellants in theirstatements under section 313 Cr.P.C. denied having come to the house of thecomplainant any having given any beating to Dayal Dass. They led someevidence in defence to show that the police bad registered a case under section307 IPC against Krishan Parkash and Dayal Dass on September 15, 1980,which was, however, later cancelled. The accused tried to show that the policewas interested in the complainant and his family and particularly SI 0mPrakash of the Police Station Tilak Nagar was so interested. The learnedtrial court came to the conclusion that the three appellants had given lathiblows to Dayal Dass. All the six accused had been charged for offencespunishable under sections 147, 148, 452 read with section 34 and under section 307 read with section 34 IPC.

(3.) The three appellants were convicted for the offences punishableunder section 452/34 and section 325/34 IPC. They were, however, acquittedof the offences under sections 147 and 148 IPC. The three co-accused of theappellants viz. Udho Dass, Jai Kishah and Jai Kumar were acquitted of all theoffences charged.